What are your rights if I have been selling a "Running for Two" shirt since 2010 & another company trademarked the phrase 2011?

The big question is whether the earnings from sales justify legal action. You could spend a lot of money on enforcement but if you don't make much from the sales, it may not be a good business decision. Based on your facts, your prior use may give you common law rights in the phrase which you could then use to (1) seek a cancellation of the registered mark and/or (2) sue for infringement.

Trademark rights in the U.S. are based on use in commerce. So if you have been using the mark longer, then you may have the senior rights. However, you need to consider the important issue Mr. Thomas has identified -- are you making enough off use of this mark to warrant sinking money into legal proceedings? Unless the answer is obvious, you can get a consultation with a trademark attorney to advise you on your rights and what would be involved in taking legal steps against the new user

If you are the senior user (and it sounds that way), then you might be able to successfully challenge the trademark obtained by your competitor. Trademark rights arise from use in commerce. not registration. Registration is valuable for many reasons, but it is not required that you register in order order to develop and enforce common law trademark rights. As the senior user, you probably have common law trademark rights. But common law rights are much more limited than registered trademark rights---they are often limited to the geographic area in which you have operated (whereas a registered trademark holder has the right to use the mark nationally). Nonetheless, if you were selling shirts via web-sites such as Zazzle, you may already have achieved national common law trademark status. If you want to push the issue with Zazzle and your competitor, you certainly might be successful legally But here is the big question---does it make sense for you to fight this financially. The cost of challenging the trademark of your competitor will be significant---think six figures at the least and possibly 7. Trademark litigation and/or trademark cancellation proceedings in the USPTO are very expensive. An alternative to litigation that is sometimes more cost effective is to retain a well-known law firm to write a demand letter to the senior competitor and Zazzle and try to get them to agree via negotiation to allow you to continue to sell your t-shirts. But even if you limit the tasks assigned to your lawyers to writing a few letters and negotiating, this costs a significant amount of money. Only you can decide whether it makes economic sense to pursue these claims.

You have already received good advice, but one additional issue that will need to be considered is whether your use amounts to use as a trademark or use as ornamentation. If the use is ornamentation, then such use would not result in trademark rights. The Trademark Manual of Examining Procedure lists the criteria for determining what is ornamentation, but one example is that a design covering most of the front of the shirt will be more likely to be found to be ornamentation than a small logo in the upper left portion of the shirt.

As noted, you may have some options but the question is really what is it all going to be worth to you. It is also unclear whether you developed any trademark rights in this phrase or tagline. That is, merely, placing a phrase on a shirt for example does not make it a trademark, but if it seems clear that your market identified your product by that phrase and you were using it first then you likely have prior use rights as least as they pertain to your geographic market area. I suggest that you consult with a lawyer in private and discuss your objectives and best course of action in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with. Best regards, Frank Natoli-Lapin, LLC